Appealed from: Merit Systems Protection Board.
Before Friedman, Smith, and Bissell, Circuit Judges.
This is a petition to review the Merit Systems Protection Board's (Board) dismissal of the petitioner's appeal for lack of jurisdiction because it was untimely. We affirm.
On August 29, 1981, the Federal Aviation Administration removed the petitioner as an air traffic controller because of his participation in the illegal air traffic controllers strike. On February 9, 1982, the petitioner filed within 20 days of the removal, as the Board regulations require, 5 C.F.R § 1201.22 (1982), the Board's regional director invited the petitioner to show good cause for the delay.
In response, the petitioner alleged that his ear had been injured in June of 1981 and that such injury had made him incapable of performing his duties as an air traffic controller; that although he thought his injury was permanent, on January 23, 1982, he discovered that his hearing had been restored; and that as soon as he discovered that he could hear again, he promptly filed his appeal.
The presiding official ruled that the petitioner had "not given a reasonable excuse for his failure to file his appeal within the 20 day time limit" and therefore had "not shown good cause for waiving the time limit . . . ," and he dismissed the appeal as untimely. The presiding official pointed out that the petitioner
was not removed for inability to perform his position for medical disability. Rather, [the petitioner] was removed from the service for engaging in the criminal conduct of striking against the federal government. Assuming that [the petitioner] did believe that he was medically disabled from performing his position, the exercise of ordinary prudence by him would dictate an appeal of the assertions made in the decision to remove him. Even if [the petitioner] believed that he ultimately would be retired due to his disability or would resign from employment, a reasonably prudent person in such circumstances would seek to correct his employment record to reflect his claim that he had not engaged in an illegal activity but instead had been forced to abstain from work due to a medical condition. In addition, since [the petitioner] maintained that he was unable to perform the position he held, a timely appeal could have enabled him to diligently explore the possibilities of working in other positions in the agency.
Notwithstanding the request of counsel for oral argument in the present appeal, we have determined on the basis of the request and the briefs that oral argument will not be necessary because the facts and legal argument are adequately presented in the briefs and record, and the decisional process would not be aided by oral argument. Fed. R. App. P. 34(a).
A. The petitioner contends that the Board improperly denied him a hearing on the question whether the time limit for filing his appeal should be waived, and that that denial violated 5 C.F.R. § 1201.11 (1982) and denied him due process.
1. Section 1201.11 does not address the question at all. It is a general statement about the application of the Board's rules to appellate proceedings which, in pertinent part, states:
The rules in this subpart apply to appellate proceedings of the Board. . . . It is the policy of the Board that these rules shall be applied in a manner which expedites the processing of each ...